There is some concern that the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith will harm the documentary filmmaking community. Scott Hervey and Tara Sattler discuss the implications of this case on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Scott:
When Andy Warhol Foundation versus Goldsmith was pending before the Supreme Court, a group of prominent documentary filmmakers, including the makers of The Last Days of Vietnam, The Invisible War. Won’t you be my neighbor? And RBG filed an amicus brief and claimed that the Second Circuit’s proposed change to the way fair use is analyzed could, quote, devastate now that Warhol has been decided, it’s clear that the way in which fair use is now to be determined will have an impact on documentarians who rely on the use of unlicensed third-party materials as part of conveying their story. We are going to talk about this on this installment of The Briefing.

We covered the Supreme Court’s decision in Andy Warhol Foundation versus Goldsmith in a previous episode, but let’s hit on some highlights relevant to the impact of this decision on documentarians. The decision changes the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell versus Acuffro’s Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether the new work merely supersedes the objects of the original creation or instead adds something new with further purpose or different character, altering the first with new expression, meaning, or message. In other words, whether and to what extent the new work is transformative.

Tara:
This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus has been on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use. The importance of transformativeness all changed with this opinion. The fact that the second work conveys a different meaning or message from the first work without more is not dispositive. Now, the focus of the first fair use factor, the purpose and character of the use, has shifted from a context-based analysis to a purpose-based analysis.

Scott:
That’s right, Tara. Now, the first fair use factor will analyze whether the purpose of the use of the second work is different enough from the first to reasonably justify a copying. So now let’s talk about how this decision will and will not change how documentarians can use third party footage under fair use. So documentarians frequently use third party footage in order to comment on or critique the footage itself. Section 107 of the Copyright Act provides that the fair use of a copyrighted work, including such use for purposes such as criticism and comment, is not an infringement of copyright.

Tara:
At oral argument in Warhol, both Goldsmith and the US. Government agreed that commenting on the original work, criticizing it, or otherwise shedding light on the original work is the most straightforward way to establish fair use.

Scott:
Right. In its opinion, the Supreme Court reasoned that where the use is for commentary or criticism, a copying of the first work may be justified because copying is reasonably necessary to achieve the user’s new purpose. Also, the Court observed that criticism of a work ordinarily does not supersede the objects of or supplant the work. Rather, it uses the work to serve a distinct end.

Tara:
But what about uses that are not for the purpose of criticism or commentary, but for a biographical purpose? Documentarians often use third party footage as a biographical anchor to convey a biographical fact about the subject. Would such uses reasonably justify the use of the underlying material?

Scott:
That’s a great question, Tara. Let’s take, for example, the copyright infringement case filed by the rights holders to The Ed Sullivan Show against the producers of the Broadway hit Jersey Boys. That’s the case of Sofa Entertainment versus Dodger Productions. In that case, Sofa Entertainment took issue with a segment in the play where one of the band members speaks to the audience directly about how the band was coming of age during the British invasion. And then he speaks to the audience, or as he’s speaking to the audience. A clip of The Ed Sullivan Show is shown where Sullivan introduces the band, and then after that, the stage actors perform in.

Tara:
Sova the 9th Circuit said that using it as a biographical anchor, the producers put the clip to its own transformative ends, and that being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music.

Scott:
The 9th Circuit’s analysis of the purpose of the use of the clip the Ed Sullivan clip was contextual. Had the 9th Circuit engaged in a purpose-based analysis, this factor may have favored the plaintiff. Given that, there is a strong argument that the purpose of both uses are extremely close the original being to introduce the band to the Ed Sullivan audience, and the purpose of the second use being to show the introduction of the band on The Ed Sullivan Show.

Tara:
Right, and prior to the US. Supreme Court’s decision in Warhol, it was well established that the use of third-party content to serve as a biographical anchor is fair use.

Scott:
That’s true, and I gave that advice previously many times to documentary producers. However, it’s not so clear that that will always be the case in light of Warhol going forward. While a different contextual purpose may be relevant, as you said earlier, it’s no longer dispositive. Further, it may be challenging to determine when the first factor would favor copying, since the determination of whether the second use shares the purpose or character of the original work or instead has a further purpose or different character is a matter of degree, and that degree of difference must be balanced against the commercial nature of the use. As said the Supreme Court in Warhol, and there is scant little case law to provide guidance here.

Tara:
The Warhol Court focused significantly on balancing the first fair use factor against the copyright owner’s right to create derivative work. The court said that Campbell cannot be read to mean that the first fair use factor weighs in favor of any use that adds new expression, meaning or message. Otherwise, transformative use would swallow the copyright owner’s exclusive right to prepare derivative works. Perhaps the extent to which a secondary work could or could not be considered a derivative of the first is part of the measurement of the degree to which the second work has or doesn’t have a further purpose or a different character.

Scott:
I agree with that. I do think that whether or not the allegedly infringing work could be considered a derivative of the original will be part of the measurement of the degree to which the second work has or doesn’t have a further purpose or a different character. In light of the refocusing of the first fair use factor, the remaining fair use factors also take on renewed importance, and they will require a deeper inquiry post Warhol. So what might this look like for a documentarian who uses a third party clip as a biographical anchor? Well, some guidance may be found in Sofa Entertainment, the Ed Sullivan case that we just talked about, where the clip is used and where it conveys mainly factual information. The second factor, the nature of the copyrighted work, will favor the documentarian. Since factual information is not as close to the core of intended copyright protection as for the third factor, the amount and substantiality of the portion used. If the clip used is short, and in Sofa it was 7 seconds, then its use may be quantitatively insignificant.

Tara:
But what about that fourth factor, the one about market harm? Generally, a documentary that uses the clip as a biographical anchor will not be a market substitute for the clip’s source. However, what if the plaintiff actively licensed its content for a fee?

Scott:
In Bill Graham archives versus Dorling Kinserly, the court said that the market harm suffered due to the loss of license fees was not sufficient to sway the fourth factor, where the use of the images was contextually transformative. However, in Warhol, the Court of Appeals found that the Warhol Foundation’s commercial licensing of its image encroached on Goldsmith’s protected Market to license her photographs.

Tara:
Given the shift in how the first fair use factor is analyzed, even if the purpose of use is different in a situation where the plaintiff licensed its content, would the use be different enough to reasonably justify a copying?

Scott:

So that’s the million-dollar question, and that one will probably have to be worked out in litigation in lower courts. And while Warhol does not seem to impact a documentarian’s ability to use third party content for criticism and commentary, it does complicate the ability of a documentarian to use third party content for biographical purposes. This uncertainty isn’t good for documentarians or the consuming public that enjoys compelling documentaries.

Tara:
Yeah, I think that’s true. I think in the documentaries and docuseries that we watch, it really helps to draw in the viewer and attract the viewer when clips such as The Ed Sullivan Show or other well-known pop culture icons can give context to a story that the documentary or the docu-series is telling.

Scott:
Right. And it definitely makes it more difficult for the likes of you and I to provide guidance to our clients on whether or not they can use third party content. Because right now it’s a big I don’t know, or it really may be risky and there’s no clear path that there’s no clear path yet.

Tara:
Yeah. Anything that relies on a specific degree where there isn’t a clear line differentiating the appropriate and inappropriate degree, that really creates a lot of work for lawyers and a lot of risk analysis that we’re going to be doing.

Scott:
Right. Really, this is going to have to be fleshed out in future litigation. And I know I don’t want my clients to be part of that litigation. So, I think, unfortunately, this is one where analysis, or at least the advice given, will have to be a little bit more conservative until there’s lower court litigation, giving us some milestones that we can rely on, especially where the plaintiff has a licensing program where they actively license their clips. I think it’s just very risky, but we’ll see what litigation will come because it certainly will come from this.

Tara:
Yeah, absolutely. Thanks for talking to us about this.

Scott:
Thanks, Tara.

Tara:

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